Note: The author would like to acknowledge that this article benefited from a Workshop, held on Feb. 3 at the George Washington University Law School, entitled “U.S. Cooperation with the International Criminal Court on Investigation and Prosecution of Atrocities in Ukraine: Possibilities and Challenges,” which brought together leading practitioners and experts from around the country. The views expressed in the article are those of the author.
The New York Times reported yesterday that Biden administration principals met recently to consider providing potentially key evidence to support the International Criminal Court (ICC) Prosecutor’s investigation of alleged Russian war crimes in Ukraine — including information about decisions by Russian officials to deliberately target civilian infrastructure and to abduct Ukrainian children from occupied territory. For its part, the Administration has yet to provide the support, or to decide whether it would provide other support to the Prosecutor’s investigation of atrocities in Ukraine that may be needed in the future.
Importantly, legislation adopted during the last Congress significantly broadened the authority under U.S. law for providing support for the Prosecutor’s investigation. Given the complexities of the patchwork of carve-outs and authorizations, these new laws merit a careful unpacking. The most directly relevant legislation was in the Fiscal Year (FY)-2023 Consolidated Appropriations Act (PL 117-328), which contained welcome revisions of the “Dodd Amendment.” But other legislation – including the Justice for Victims of War Crimes Act (PL 117-351) and the FY 2023 National Defense Authorization Act (PL 117-263) (FY23 NDAA”) — also contained significant new elements that underscore the importance attached to supporting accountability for those responsible for the atrocities. As explained below, the significance of these provisions for future cooperation is both legal and political.
Background on American Servicemembers’ Protection Act
The new legislation was enacted against the backdrop of restrictions that Congress adopted in the early 2000’s, in the period following the conclusion of the Rome Statute that established the ICC. The most prominent set of restrictions was contained in the American Servicemembers’ Protection Act (ASPA), which among other things restricted the provision of “support” to the ICC, military assistance to Rome Statute parties that refused to conclude “Article 98” agreements with the United States (“non-surrender” agreements), and the ability of U.S. armed forces to participate in UN peacekeeping operations in states that had accepted the ICC’s jurisdiction. The legislation defined “support” extraordinarily broadly to mean “assistance of any kind, including financial support, transfer of property or other material support, services, intelligence sharing, law enforcement cooperation, the training or detail of personnel, and the arrest or detention of individuals.” The legislation also contained authority to use military force to free U.S. persons – as well as what it called “covered allied persons” – who might be detained or imprisoned by or on behalf of the ICC.
Over time, Congress came to recognize key ASPA limitations, including the restrictions on military assistance, as incompatible with broader U.S. foreign policy objectives. Most famously, Secretary of State Condoleezza Rice commented that we were “shooting ourselves in the foot” by cutting off assistance to states that we had our own interest in assisting. The prohibitions on military assistance (as well as later legislation, known as the Nethercutt Amendment, which restricted key economic assistance) were rolled back over time, but the basic ASPA restrictions on U.S. cooperation with the ICC remained on the books.
The Dodd Amendment
Notwithstanding these restrictions, however, Senator Chris Dodd sponsored an amendment in the late stages of the ASPA legislative process that created a substantial carve-out. Specifically, the Dodd Amendment made all the ASPA restrictions inapplicable to the rendering of assistance by the United States–
“to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.”
A memorandum from DOJ’s Office of Legal Counsel in 2010 confirmed that the international efforts to which such assistance could be provided included the ICC. The Dodd Amendment thus cleared an important path for the provision of various forms of U.S. actions that were supportive of the ICC’s work. It provided a statutory underpinning for the Obama Administration’s policy of case-by-case support for ICC investigations and prosecutions, as well as for such prominent efforts as the U.S. facilitation of the surrenders of Congolese warlord Bosco Ntaganda and LRA commander Dominic Ongwen, both of whom were fugitives from ICC arrest warrants.
Gaps – Limits on the Availability of the Dodd Amendment
There were, however, limits to the use of the Dodd amendment. It could not, of course, be relied on to provide assistance to ICC efforts to bring U.S. persons to justice, nor did it allow assistance for efforts to bring to justice perpetrators of the crime of aggression. Also, at least arguably, because it applied only to assistance rendered by the United States, it could not be relied on by state or local governments, which thus remained covered by the ASPA prohibition on support. But these gaps were relatively unimportant as they did not block activities that there was in practice any desire to undertake.
But other gaps were more important, including:
1. Assistance before “accusations” had been made. At least according to the apparent Executive branch interpretation, the Dodd amendment could only be used to provide assistance for bringing to justice foreign persons against whom there were already “accusations.” This arguably follows from the particular wording of the Dodd amendment, which spoke of assistance for efforts to bring to justice “foreign nationals accused of genocide, war crimes or crimes against humanity” (emphasis added). Although there was room for debate about what might qualify as an “accusation,” this interpretation prevented the Executive branch from relying on the Dodd amendment before “accusations” have been made, such as assistance in the early stages of the Prosecutor’s efforts in a country that would help identify which individuals should be “accused.”
This was an unfortunate practical result, because the Executive branch interpretation is not persuasive. Among other things, if one goes back to the original Dodd amendment language, one can see that it included a specific reference to efforts to bring to justice Saddam Hussein — against whom no formal accusations had then been brought before any international tribunal at the time the Dodd amendment was adopted in 2002 — as an example of the kind of effort the amendment was intended to permit. Even more striking, it includes a similar reference to “leaders of Islamic Jihad,” who the Dodd amendment itself did not specify by name. Based on the wording, as well as the logic of the situation, it seems exceedingly unlikely that Senator Dodd, or the other Senators and Members of Congress who supported the amendment, meant to preclude efforts to help identify which particular leaders of Islamic Jihad should be criminally pursued.
Moreover, the Executive branch interpretation seems hard to square with statements made by the Executive branch during the Bush administration, including statements by then Deputy Secretary of State Zoellick of readiness to assist the Prosecutor’s efforts in Darfur,- at a time when allegations against specific individuals of responsibility for the atrocities in Darfur had not yet been lodged.
2. Assistance in the form of funding. The Dodd amendment allowed the United States to provide assistance notwithstanding restrictions in ASPA, but it did not overcome restrictions in other legislation. Accordingly, the United States could not rely on Dodd to provide assistance in the form of direct funding, which was barred under a separate piece of legislation—section 705 of the FY-00/01 Foreign Relations Authorization Act (“section 705”).
3. Investigative Activities in the United States. There was a particularly thorny issue regarding “investigative activities” in the United States under section 2004(h) of the ASPA. It provided that:
No agent of the International Criminal Court may conduct, in the United States or any territory subject to the jurisdiction of the United States, any investigative activity relating to a preliminary inquiry, investigation, prosecution, or other proceeding at the International Criminal Court.
There could be any number of questions about exactly what qualifies as “investigative activities” and what qualifies as the conduct of such activities “in the United States” (e.g., might a phone interview conducted from abroad of a person in the United States fall within the ambit of this restriction?). But a more fundamental problem arose because section 2004(h) was written as a restriction on the conduct of “agents of the ICC.” By its terms, the Dodd amendment could be used to lift the restriction on the rendering of assistance by the United States, but that would not necessarily remove the restriction that applied directly to ICC agents under 2004(h). Thus, the Dodd amendment was not interpreted as providing authority that would enable the ICC to conduct investigative activity otherwise restricted by section §2004.
Filling the Gaps – The Recent Revisions to the Dodd Amendment
The new legislation – specifically section 7073 of the FY23 Consolidated Appropriations Act –revises the Dodd amendment to address each of these three problems and cleared important new paths for the United States to support the ICC Prosecutor’s efforts in Ukraine.
First, with respect to assistance before “accusations” have been made, the new legislation makes clear that, at least insofar as the ICC Prosecutor’s efforts in Ukraine are concerned, the United States can provide assistance regardless of whether “accusations” have yet been made. Specifically, the relevant portion of the Dodd Amendment now reads as follows (with the new language italicized):
Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity, or from rendering assistance to the International Criminal Court to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine, including to support victims and witnesses.
Although the new language of course applies only with respect to Ukraine, it could be a useful model either for language that Congress could adopt in the future that would apply generally, or — perhaps as another intermediate step – for specific situations of particular concern to Congress and the public.
It is worth noting that the new language is worded to allow assistance for “investigations and prosecutions.” If future legislation utilizes similar language, there could be difficult interpretive questions about whether it permits assistance in situations where the Prosecutor has not yet progressed to the stage of an “investigation” and is still at the stage of a “preliminary examination” (where a good deal of the Prosecutor’s important work is typically done). I believe the new language would be sufficient – e.g., assistance to gather information during a preliminary examination is assistance to the investigation — but others might disagree. In any case, that issue is moot with respect to Ukraine, where the Prosecutor has already formally commenced an investigation.
Second, with respect to assistance in the form of funding, the original Dodd amendment was available only to overcome restrictions in ASPA itself but could not overcome restrictions in other legislation – including notably the direct funding restriction in section 705. The new legislation overcomes this problem by providing that, if assistance would be for a permissible purpose under the Dodd amendment, section 705 will no longer bar the provision of direct funding.
There is a caveat that none of these funds “may be made available for the purpose of supporting investigations or prosecutions” of U.S. persons or of “covered allied persons” (i.e., relevant persons from NATO members or states that have been designated as “major non-NATO allies” under the Foreign Assistance Act and that have not consented to ICC jurisdiction).
To utilize this authority, the Secretary of State would need to notify the foreign affairs and appropriations committees fifteen days before obligating funds. The notification requirement could be useful in helping the Executive branch and the Congress stay on the same track and work out any issues that may arise in as cooperative a manner as possible.
Finally, it is worth noting that the legislation to overcome the section 705 funding restrictions applies not only with respect to Ukraine, but also to assistance made available under the pre-existing Dodd carve-outs for foreign nationals in other situation countries that are accused of atrocities. In other words, for those situations outside Ukraine in which Dodd applies and “accusations” already exist, section 705 would no longer block direct funding.
Third, the new legislation contains a specific provision to overcome the restrictions on investigative activities in the United States. Specifically, the new legislation renders section 2004(h) inapplicable for activities that “relate solely to investigations and prosecutions of foreign persons for crimes within the jurisdiction of the International Criminal Court related to the Situation in Ukraine.” In order to be permissible, the activities must be “undertaken in concurrence with the Attorney General.” The modalities for the granting of any such concurrence will of course need to be worked out, but it is worth noting that requirements to secure concurrence of a host state before conducting investigative activities on its territory are not unusual among states that cooperate on law enforcement matters.
Issues That May Need to be Addressed
Issues will inevitably arise in implementing the legislation. I note three such issues here.
What it means for support to be “Ukraine-specific” and the earmarking of funds and support. One potential set of questions involves what it means for an investigation or prosecution to be “related” to the Situation in Ukraine. As an example, could an investigation of the activity of the Wagner Group that extended to outside Ukraine qualify for assistance under this new language?
Perhaps more importantly, because the exception in the new legislation applies only to assistance related to the Situation in Ukraine, the administration would need to think through questions about the provision of assistance that might also benefit other efforts in which the ICC Prosecutor is engaged. This issue could become particularly important if the administration eventually seeks to provide direct funding, which can be uniquely fungible.
One obvious way for the administration to assure that any funds are used solely for Ukraine would be to specify that the funds can be used solely for that purpose. From the perspective of the ICC Prosecutor, however, earmarked funding (or other support) could foster a perception that the justice that ensues was not arrived at solely on the basis of the law and evidence, and that the Prosecutor is bending to the political priorities of its donors. It is thus not surprising that the Prosecutor has said that “we will not accept earmarked support.” There are ways to potentially thread the needle, at least for some forms of assistance, but this is an issue that may well require attention.
Contributions to the Trust Fund for Victims. The United States has not in the past provided contributions to the Trust Fund for Victims established by the Assembly of States Parties under Article 79 of the Rome Statute. As explained in the 2021 report from the ASIL Task Force that I co-chaired with now-Ambassador-at-Large Beth van Schaack, the Trust Fund for Victims is an entity distinct from the organs of the Court, governed by an independent board and not by Court personnel, and there is thus a strong argument that contributions to the Fund are not covered by the restrictions on support for the Court under either ASPA or section 705. In any event, the specific language in the revised Dodd amendments removes any remaining doubt about the permissibility of such contributions for Ukrainian victims.
Sharing classified or otherwise restricted information. Separate from any restrictions under ASPA, the ICC’s rules on the treatment of exculpatory information complicate the prospects for sharing such information. Specifically, Article 67 of the Rome Statute requires the Prosecutor to disclose to the defense potentially exculpatory evidence in its possession and states that “in case of doubt . . . the Court shall decide.” It is true that Article 54 of the Rome Statute states that the Prosecutor may agree not to disclose lead information that “the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information provides consent.” The ICC judges have ruled in the Lubanga case , however, that they have a role in overseeing these provisions to assure that defendants have access to exculpatory information, with the result being that the Prosecutor cannot assure information providers that he will not disclose the information to the ICC judges, or – depending on the decision of the judges – to the defense.
Other Important Legislation from the 117th Congress
Additional legislation that is closely linked to these issues, even if it does not mention the relationship with the ICC specifically, also merits attention. Each of these pieces of legislation underscores the importance being attached to prioritizing U.S. efforts to ensure that those responsible for atrocities in Ukraine are brought to justice.
The Justice for Victims of War Crimes Act. This legislation fills an important gap in United States law that will prevent war criminals – whether from Ukraine or elsewhere – who are present on U.S. territory from being immune from war crimes prosecution in U.S. courts. This legislative gap had been particularly troubling because the United States in fact has a treaty obligation, under the Geneva Conventions, to “bring such persons, regardless of their nationality, before its own courts.” The new legislation fulfills this obligation and is supportive of the objectives of the ICC, which operates on the principle that we should look to states to investigate and prosecute atrocities, and that the ICC should only step in when states are unwilling or unable to do so. As was clear in the statements of Senator Durbin, who sponsored the legislation, it was the connection of the bill to efforts to assure accountability in Ukraine that drove it to final passage.
The Ukraine Invasion War Crimes Deterrence and Accountability Act (Section 5948 of FY-23 NDAA). This legislation provides that it is U.S. policy to collect, analyze and preserve relevant evidence and information, to help deter the commission of further Russian atrocities, and to continue efforts to pursue accountability for atrocities in Ukraine and “to leverage international cooperation and best practices in this regard.” The legislation also requires a detailed report from the President to the foreign affairs, armed services, judiciary and intelligence committees within 90 days of enactment. Among other things, the reports must address “steps taken to coordinate with, and support the work of, allies, partners, international institutions and organizations”; and on the “process for a domestic, foreign, or international court or tribunal to request and obtain from the United States Government information related to war crimes or other atrocities” committed during the Russian invasion. The legislation does not of course specifically require sharing any particular information with the ICC (or with any other court for that matter), but the legislation’s tie-in to the work of the ICC is self-evident.
Section 6512 et seq. of the FY-23 NDAA. These provisions require the Director of National Intelligence to designate a senior official to serve as intelligence community coordinator for Russian atrocities accountability, with duties that include identifying and disseminating relevant intelligence, identifying analytic needs and priorities, addressing collection gaps, and collaborating with others across the intelligence community. Among other things, the Director must submit a report that includes a strategy for collection of information. As with the above legislation, the support for ensuring accountability for atrocities in Ukraine — and the legislation’s tie-in to the work of the ICC — are clear.
The Political Significance – What Congress is Telling Us
Notwithstanding the four years of the Trump Administration, active United States support for ICC efforts to bring perpetrators of atrocities to justice date back at least to President George W. Bush’s decision in 2005, amidst allegations of genocide and other widespread atrocities, to enable the Security Council to refer the situation in Darfur to the ICC Prosecutor. In explaining the U.S. position to the other Council members at the time, U.S. Ambassador Anne Patterson made clear that “the need for the international community to work together in order to end the climate of impunity in the Sudan” simply outweighed U.S. concerns about the Court. In effect, the United States view was that, yes, we have concerns about this Court, but we are living in a complicated world; our diplomacy needs to take account of the full range of considerations, and we cannot let those concerns overwhelm our ability to make decisions that serve our broader interests. It was thus, as John Bellinger has noted, that President Bush was “more concerned about the atrocities in Darfur than the theoretical possibility of prosecutions of Americans in the future.”
The way in which the Executive branch balanced these competing interests may have been different during the Obama Administration, but the underlying idea that there needed to be a balancing was the same. Indeed, this was the essence of the Obama administration’s adoption of a policy of providing support to the ICC on a case-by-case basis, where doing so was consistent with U.S. interests and law. It led to critical U.S. support on high-profile initiatives, including – as mentioned above — the surrenders of ICC fugitives Bosco Ntaganda and Dominic Ongwen.
Under that case-by-case approach, the United States has been able to look at what it sees as the broader picture to make decisions about assistance and support on a pragmatic basis, in a way that positions it to work effectively with its allies and other partners. This was true even in cases – such as in Kenya – where the ICC proceeded on the basis of the proprio motu jurisdiction to which the United States had objected at Rome, and even where it proceeds on the basis of an admissibility regime that the United States may at times find less than perfect.
The United States must make decisions in the world in which it lives, not a world that it might see as perfect. And it must inevitably make decisions in which some of its concerns are outweighed by others. Just as President W. Bush recognized in connection with Darfur, the United States must work with the tools that in fact exist.
Until now, however, the United States has treated one particular concern about the ICC differently than others – as a concern of a type that was incapable of being countervailed. That one concern has been its objection to the ICC’s assertion of jurisdiction over nationals of states that are not parties to the Rome Statute. It is an objection that that has been put forward in each of the Clinton, W. Bush, Obama, Trump and Biden Administrations – every administration since the Rome Statute was negotiated. One can agree or disagree with the objection, but the key point is that it has in practice been treated fundamentally differently – not as one consideration in a broader balancing of interests, but as an automatically dispositive factor.
The recent flood of legislation is telling us that this approach ultimately cannot stand in the face of the demands for accountability for the atrocities being reported in Ukraine. Congress could not have been more clear. An iron-clad rule against any cases involving assertions of jurisdiction over nationals of non-state parties would of course protect the U.S. government against the possibility of ICC prosecutions against U.S. persons. But the ICC will never adopt such a rule, regardless of what the United States says about situations like Ukraine. Refusing U.S. support unless the ICC pledges not to pursue cases against Russian nationals in Ukraine would incapacitate the United States from pursuing what is both morally right and clearly in its own best interests.
Importantly, it is not just the legislation that is telling us this. The outpouring of congressional support for the ICC’s efforts in Ukraine has been remarkable. Perhaps most noteworthy was the unanimous Senate adoption of S. Res. 546, introduced by Senator Graham (R-SC), which referred to the ICC as “an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists,” and which “encourage[d] member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate [Russian] war crimes and crimes against humanity.” The historic visit of a bipartisan congressional delegation to The Hague in November 2022 — virtually unimaginable a mere year earlier – sends the same message. In the words of Senator Graham: “I didnʼt think it was possible but [Putin] did it — and thatʼs for him to rehabilitate the ICC in the eyes of the Republican Party and the American people.”
Thus, even beyond its operational importance, the legislation described above stands as bipartisan testament to the principle that the United States should not treat its traditional jurisdictional objection as automatically dispositive in assessing whether it should support the ICC Prosecutor’s efforts. For its part, the Biden administration has made generalized statements supportive of the Prosecutor’s efforts but, as has now been publicly noted, tangible support is being withheld.
Congress has now given the Biden administration the tools it needs – both legal and political — and the ball is now in its court. Whatever concern may still be harbored, the United States as a government should not elevate them in a way that prevents the provision of tangible support to the Court and that amounts — in Secretary Rice’s words – to “shooting itself in the foot.”